777 PARTNERS LLC, et al., Plaintiffs, v. LEADENHALL CAPITAL PARTNERS LLP, et al., Defendants Case No. 24-cv-81143-MIDDLEBROOKS/MATTHEWMAN United States District Court, S.D. Florida Entered on FLSD Docket March 04, 2025 Counsel Brian M. McPherson, Roger William Feicht, Gunster Yoakley & Stewart, West Palm Beach, FL, David A. Pellegrino, Pro Hac Vice, John G. McCarthy, Pro Hac Vice, Smith, Gambrell & Russell, LLP, New York, NY, George S. LeMieux, Gunster Yoakley & Stewart, Fort Lauderdale, FL, James Boland, Pro Hac Vice, Smith, Gambrell & Russell, LLP, Chicago, IL, Jason Paul Stearns, Smith, Gambrell & Russell, LLP, Tampa, FL, for Plaintiffs. Brian Paul Miller, Ross Elliot Linzer, King & Spalding, Miami, FL, Brian Donovan, Pro Hac Vice, Leigh M. Nathanson, Pro Hac Vice, King & Spalding LLP, New York, NY, Peter Starr, Pro Hac Vice, King & Spalding LLP, Atlanta, GA, for Defendants Leadenhall Capital Partners LLP, Leadenhall Life Insurance Linked Investment Fund PLC. Leonard Scott Feuer, Leonard Feuer, P.A., West Palm Beach, FL, for Defendant Noah Davis. Harold Eugene Morlan, III, Shutts and Bowen, LLP, Orlando, FL, for Defendants Saiph Consulting LLC, Paul Kosinski. Matthewman, William, United States Magistrate Judge ORDER ON DISCOVERY MOTIONS [DE 95; DE 107] *1 THIS CAUSE is before the Court upon Defendants Leadenhall Capital Partners LLP and Leadenhall Life Insurance Linked Investments Fund PLC's (“Leadenhall Defendants”) Motion to Compel Depositions and Document Discovery (“Motion to Compel”) [DE 95] and Plaintiffs 777 Partners LLC and Suttonpark Capital LLC's (“Plaintiffs”) Motion for a Protective Order Regarding Certain Depositions Noticed by Defendants (“Motion for Protective Order”) [DE 107]. Both Motions are ripe for review. See DEs 104, 110, 111, 114. The parties also filed a Joint Notice Regarding Discovery Disputes [DE 112] stating that some but not all discovery issues had been resolved after further Court-ordered conferral. The Court also held a hearing on the Leadenhall Defendants’ Motion to Compel and Plaintiffs’ Motion for Protective Order on February 27, 2025. The Court made certain oral rulings at the hearing, and this Order is intended to memorialize and elaborate on those oral rulings. I. BACKGROUND This case is primarily brought under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. See DE 68. Plaintiff alleges the following facts. Plaintiff Suttonpark Capital LLC (“Suttonpark”) is a corporate affiliate of Plaintiff 777 Partners LLC (“777 Partners”). Id. ¶ 7. The Leadenhall Defendants filed an action in the Southern District of New York (“SDNY”) accusing 777 Partners of breach of contract and fraud on May 3, 2024. Id. ¶ 18. Before filing suit, the Leadenhall Defendants asserted contractual rights to conduct a collateral audit of Suttonpark. Id. ¶ 22. Then 777 Partners retained B. Riley Advisory Services to restructure the business. Id. ¶ 23. The Leadenhall Defendants used the services of Defendant Paul Kosinski and his company, Defendant Saiph Consulting LLC, (collectively the “Saiph Defendants”) to conduct the audit. Id. ¶¶ 28–30. Plaintiffs gave the Saiph Defendants credentials to access Suttonpark's systems. Id. ¶ 31. The Saiph Defendants began the audit on or about May 28, 2024. Id. ¶ 33. Next, Defendant Noah Davis (“Davis”), the former head of IT for 777 Partners and employed by the Saiph Defendants, at the behest of the Leadenhall Defendants, gained unauthorized access to 777 Partners’ systems. Id. ¶ 37. The systems that Davis accessed have information that would be useful for the Leadenhall Defendants in the SDNY action. Id. ¶ 38. Davis also targeted Steven Pasko's Microsoft Outlook folder. Id. ¶ 46. Davis gained access to Mr. Pasko's Outlook account to, again, gather information useful to the Leadenhall Defendants for their SDNY action. Id. ¶ 52. The Leadenhall Defendants claim that Davis acted alone and that his actions resulted from a payment dispute with Plaintiffs. Id. ¶ 82. Plaintiffs infer that the files that Davis gained access to during his unauthorized intrusions into Plaintiffs’ systems were provided to the Leadenhall Defendants by Davis and/or the Saiph Defendants to provide Leadenhall an advantage in the SDNY action. Id. ¶ 88. Both the Leadenhall Defendants and the Saiph Defendants deny Plaintiffs’ claims and raise various affirmative defenses. [DEs 90, 91]. *2 Now, the Leadenhall Defendants seek to depose Josh Wander, Steven Pasko, Alexander Adnani, and Mollie Wander[1] by notice under Federal Rule of Civil Procedure 30(b)(1). [DE 95]. Plaintiffs raise various objections to these depositions. [DE 104]. The Leadenhall Defendants also ask the Court to compel Plaintiffs to conduct a reasonable search for documents from certain custodians. Id. at 5. Further, the Saiph Defendants seek to depose Fred Love, Karen Gorde, and Nick Bennett by notice under Rule 30(b)(1), to which Plaintiffs also object. [DE 107]. II. DISCUSSION Under Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Under Rule 30(b)(1), “a deposition subpoena need not be issued if the person to be deposed is a party, officer, director, or managing agent of a party.” Procaps S.A. v. Patheon, Inc., No. 12-24356-CIV, 2014 WL 352226, at *2 (S.D. Fla. Jan. 30, 2014) (Goodman, J.). The determination of whether a person is a managing agent, and therefore subject to a Rule 30(b)(1) notice of deposition, is not formulaic; rather, it is a fact-specific inquiry...To make such a determination, courts focus on whether the person had power regarding the matters at stake in the litigation and whether the person's interests are still aligned with the corporation. Calixto v. Watson Bowman Acme Corp., No. 07-60077-CIV, 2008 WL 4487679, at *2 (S.D. Fla. Sept. 29, 2008) (Zloch, J.) (citation omitted). Moreover, “[c]ourts attribute managing agent status to persons who no longer have authority over the matters at issue and who no longer hold a position of authority within the corporation, ‘so long as those individuals retained some role in the corporation or at least maintained interests consonant with rather than adverse to its interests.’ ” Calixto, 2008 WL 4487679, at *3 (quoting Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1456 (D.C. Cir. 1986)). Defendants bear the burden of establishing that the proposed deponent is a managing agent, and if they are not, they are to be treated as a non-party, not subject to deposition by notice. Procaps, 2014 WL 352226, at *3.[2] A. Steven Pasko and Josh Wander The Leadenhall Defendants first seek to depose Steven Pasko and Josh Wander by notice under Rule 30(b)(1). [DE 95 at 1]. Plaintiffs object for two reasons: (1) Mr. Pasko and Mr. Wander do not have relevant personal knowledge, and (2) Mr. Pasko and Mr. Wander are not subject to a deposition by notice under Rule 30(b)(1). First, Plaintiffs’ argument that Mr. Pasko and Mr. Wander do not have relevant information is meritless.[3] The parties do not dispute that Mr. Pasko and Mr. Wander are 100% owners and were managing partners of 777 Partners at least until May 6, 2024. However, Plaintiffs attempt to limit the scope of this case to keep out information regarding the SDNY action. [DE 104 at 2–3]. In doing so, Plaintiffs argue that Mr. Pasko and Mr. Wander are not relevant because they resigned as managing partners weeks before the audit began. Id. at 2. However, this case is not as limited as Plaintiffs would allege. Plaintiffs themselves made the SDNY action relevant. Specifically, Plaintiffs claim the Leadenhall Defendants used the Saiph Defendants and/or Davis to gain unauthorized access into Plaintiffs’ systems through the audit to provide the Leadenhall Defendants an advantage in the SDNY action. See DE 68 ¶ 99, 106. The Leadenhall Defendants are entitled to information to defend against this claim. Fed. R. Civ. P. 26(b)(1). *3 Mr. Pasko and Mr. Wander are thus relevant to this case. Both were acting as managing partners when the Leadenhall Defendants advised Plaintiffs that they intended to use the Saiph Defendants to conduct the audit and are still “engaged by 777 Partners[.]” [DE 48-1 ¶ 6; DE 11-2 ¶ 8]. Further, both are defendants in the SDNY action. [DE 95 at 5]. Moreover, Davis reported to both Mr. Pasko and Mr. Wander while he was employed at 777 Partners. [DE 114 at 3]. Therefore, Mr. Wander and Mr. Pasko should have relevant information regarding the SDNY action, information surrounding the audit, the scope of Davis's access to Plaintiffs’ computer systems while he was their employee, and why Davis left Plaintiffs’ employ. [DE 114 at 1]. Second, Plaintiffs may depose Mr. Pasko and Mr. Wander by notice under Rule 30(b)(1). The Leadenhall Defendants seek to depose Mr. Wander and Mr. Pasko as managing agents under Rule 30(b)(1) as they are still employed by Plaintiffs, were in control, and have aligned interests with Plaintiffs’. [DE 95 at 2–3]. Similarly, Plaintiffs argue that Mr. Pasko and Mr. Wander do not qualify as managing agents as they resigned on May 6, 2024. [DE 104 at 4]. Under the first Calixto factor, Mr. Pasko and Mr. Wander “had power regarding the matters at stake in the litigation[.]” Calixto, 2008 WL 4487679, at *2. Undisputedly, Mr. Pasko and Mr. Wander were managing agents until their resignations. During this time, Mr. Pasko and Mr. Wander had power over relevant events including the circumstances surrounding the SDNY action, Davis's employment, and the audit. See DE 95. Therefore, Mr. Pasko and Mr. Wander “were important participants in many of the events that gave rise to this lawsuit.” Exim Brickell, LLC v. Bariven, S.A., No. 09-20915-CIV, 2010 WL 11465462, at *2 (S.D. Fla. May 19, 2010) (McAliley, J.). Under the second Calixto factor, Plaintiffs admit that Mr. Pasko and Mr. Wander retain a role in Plaintiffs’ operations. [DE 11-2 ¶ 8]. Mr. Pasko and Mr. Wander's LinkedIn profiles describe them as managing partners. [DE 95-2, Ex. 2]. The 777 Partners website still lists Mr. Pasko and Mr. Wander as managing partners. Our People, 777 Partners, https://www.777part.com/people-and-careers#our-people-jump-to (last visited Mar. 3, 2025). Therefore, Mr. Pasko and Mr. Wander “at least maintained interests consonant” with Plaintiffs. Founding Church of Scientology of Washington, D.C., Inc., 802 F.2d at 1456. Therefore, the Leadenhall Defendants may depose Mr. Pasko and Mr. Wander by notice under Rule 30(b)(1). Mr. Pasko and Mr. Wander shall be deposed on the dates noticed by the Leadenhall Defendants. [DE 95-1, Ex. 1]. B. Alexander Adnani Next, the Leadenhall Defendants seek to depose Alexander Adnani, a current employee of 777 Partners, by notice under Rule 30(b)(1). See DE 95. Again, Plaintiffs argue that Mr. Adnani has no relevant information and that he is too junior of an employee to be a managing agent. See DE 104; DE 106 ¶ 13. Mr. Adnani's testimony is relevant, and he may be deposed by notice under Rule 30(b)(1). The Leadenhall Defendants classify Mr. Adnani as playing “an integral role at 777 Partners as the more senior of only two financial analysts[.]” [DE 95 at 4]. The Leadenhall Defendants also assert that Mr. Adnani played a key role in the SDNY action by “sending false compliance reports to [the Leadenhall Defendants] at [Mr. Wander's] direction.” Id. Further, Mr. Adnani oversaw for Plaintiffs “the audit of [the Leadenhall Defendant's] collateral[.]” Id. Plaintiffs refute this by relying on an affidavit calling Mr. Adnani a “junior analyst with 777 Partners.” [DE 106 ¶ 13]. However, Mr. Adnani is not listed as a “junior analyst” on the 777 Partners website and is labeled as a “senior investment analyst” on his email signature. Our People, 777 Partners, https://www.777part.com/people-and-careers#our-people-jump-to (last visited Mar. 3, 2025); DE 114-2, Ex. 6. Therefore, given Mr. Adnani's current senior role at 777 Partners and the level of responsibility he had regarding key events, he qualifies as a managing agent “concerning [his] important activities in the underlying facts” and should possess relevant information. Procaps, 2014 WL 352226, at *3; Fed. R. Civ. P. 26(b)(1). *4 Thus, the Leadenhall Defendants may depose Mr. Adnani by notice under Rule 30(b)(1). Mr. Adnani shall be deposed on the date noticed by the Leadenhall Defendants. [DE 95-1, Ex. 1]. C. Nick Bennett The Saiph Defendants seek to depose Nicholas Bennett, the current financial analysis manager at 777 Partners, by notice under Rule 30(b)(1). [DE 111 at 3]. Plaintiffs, again, object and argue that Mr. Bennett does not have relevant information and that he is not a managing agent. [DE 107 at 2–4]. Like Mr. Adnani, Mr. Bennett's testimony is relevant, and he may be deposed by notice under Rule 30(b)(1). The Saiph Defendants assert that Mr. Bennett “was responsible for overseeing the production of servicing reports to Leadenhall in connection with the audit,” and that “[h]is involvement in the financial operations of 777 Partners grants him access to relevant information that is essential for evaluating the legitimacy of the audit process.” [DE 111 at 3]. Plaintiffs argue that Mr. Bennett's “role does not rise to the level of an officer, director or managing agent.” [DE 107 at 4]. For the same reasons as with Mr. Adnani, the Court overrules Plaintiffs’ objections regarding Mr. Bennett. Thus, the Saiph Defendants may depose Mr. Bennett by notice under Rule 30(b)(1). Mr. Bennett shall be deposed on the dates noticed by the Saiph Defendants. [DE 107-3, Ex. C]. D. Karen Gorde and Fred Love Next, the Saiph Defendants seek to depose Karen Gorde and Fred Love under Rule 30(b)(1). Plaintiffs raise the same objections. Here, the Court overrules Plaintiffs’ relevance objections but finds that the Saiph Defendants cannot depose Ms. Gorde and Mr. Love by notice under Rule 30(b)(1). First, both Ms. Gorde and Mr. Love may possess relevant information about the audit and Plaintiffs’ systems. Ms. Gorde and Mr. Love interacted with the Saiph Defendants regarding the audit and are both former high-level employees of Suttonpark. [DE 111 at 2–3]. However, as stated at the hearing, both Ms. Gorde and Mr. Love resigned from their positions and have no remaining connection to Plaintiffs. Thus, the Saiph Defendants may depose Ms. Gorde and Mr. Love but must do so by subpoena under Rule 45 rather than by notice under Rule 30(b)(1). E. Document Production Lastly, the Leadenhall Defendants request that the Court order Plaintiffs to conduct a reasonable search including certain records custodians. [DE 95 at 5]. The Court is not inclined to delve into issues concerning relevant custodians as it is Plaintiffs’ duty to ensure responsive documents are produced following a reasonable search. Fed. R. Civ. P. 26(g)(1). The Court does not have the time or inclination to tell the parties which custodians are relevant and which are not. That job is for the parties and their counsel. Rather than micro-manage the custodians who must be the subject of Plaintiffs’ search, the Court instructs Plaintiffs and their counsel that they have a legal and ethical duty to conduct a fulsome search of all relevant information and documents. This includes a duty to search custodians who may reasonably possess relevant information or documents. If Plaintiffs improperly withhold relevant, nonprivileged documents or fail to conduct a thorough search and production, appropriate sanctions will follow. The Court expects all parties and counsel in this case to fulfill their legal and ethical duties to conduct a thorough search and production of discovery. *5 Further, as stated at the hearing, the Court finds that the Leadenhall Defendants’ asserted relevant time period, from July 1, 2023 to the present, is relevant and proportional under Rule 26(b)(1). Finally, Plaintiffs shall expeditiously produce responsive documents.[4] III. CONCLUSION Therefore, based on the reasons stated above, the Court ORDERS as follows: 1. The Leadenhall Defendants’ Motion to Compel [DE 95] is GRANTED IN PART AND DENIED IN PART. Plaintiffs shall produce all responsive documents to the Leadenhall Defendants’ first set of Requests for Production by March 7, 2025. 2. Plaintiffs’ Motion for Protective Order [DE 107] is DENIED. 3. The Court is concerned that Plaintiffs have endeavored to stymie relevant depositions and production of documents sought by Defendants. The Court will reserve jurisdiction to consider the impositions of sanctions or cost-shifting under Rule 37 upon Plaintiffs and/or its counsel pending the parties’ compliance with this Order. 4. Discovery in this case has been delayed due to the parties’ disagreements. The Court expects and requires cooperation during the discovery process. The Court notes that the discovery cutoff date in this case is March 20, 2025. The parties are directed to conclude all discovery by that date. DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 4th day of March 2025. Footnotes [1] Plaintiffs have withdrawn their objections regarding Mollie Wander and have committed to producing her to be deposed. [DE 112 at 2]. Thus, the Court will not address this issue. [2] To note, neither party cites any binding precedent, but the Court finds the cited cases persuasive given the facts of this case. [3] The Court is aware that Plaintiffs withdrew any relevance objection pertaining to Mr. Pasko. [DE 112]. However, for completeness, the Court will address both Mr. Pasko and Mr. Wander. [4] Plaintiffs also assert that Defendants’ depositions exceed the limit under the Federal Rules of Civil Procedure. However, given that, at the time of the hearing, only two depositions have been taken, this objection is premature and frivolous.